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DARK BUSINESS


WAIKIKI SIDEWALKS DARK BUSINESS
BACKDOOR CORPORATE GRAB OF PUBLIC LAND

DEVELOPERS DEFY NINTH CIRCUIT COURT RULINGS and
CITY’S CONSTITUTIONAL LAW ADVISER
pfd version combine Part 1+2


March 03,2011
PART 1
ATTN Street Artists / Performers / Buskers /
Community Advocates

Construction work on the Kalakaua Avenue sidewalk streetscape project will begin in a matter of days. Mayor Peter Carlisle has chosen not to intervene in this exceptionally wasteful and unnecessary project despite identifying multimillion-dollar wastes he says are carried over from the Mufi Hannemann Administration.
The city has ignored the Waikiki Neighborhood Board in their request for integrating the sidewalk artists into the design.
Can it be that Carlisle is controlled by the same private corporate interest as Hanneman? -Namely the Waikiki Improvement Association and Waikiki Business Improvement District, both private organizations which are directing the project through WIA Director Rick Egged.

The city has never held a hearing on the project. Greg Hee of the Department of Design and Construction had to be coaxed by Waikiki board members to shed light on the project at a September 14, 2010 meeting - after city/private developer plans and funds were approved. Hee assured the Waikiki board that Waikiki businesses had planning input. Indeed! The large property owners are moving this project! But the most affected, the street buskers have never been consulted and the Waikiki Neighborhood Board has been shunned.
Since project details have become known concerns in the community include well grounded fears that the funding of this joint venture is illegal. Concerns also include the fact that the artists and sidewalk users will be illegally dislocated and are being discriminated against, that the city and private property owners are now open to expensive litigation, and that taxpayers cannot afford the $20 million phase one price.

Developers, the mayor and the council members intend to move forward with this project. Professor Jon Van Dyke, a University of Hawaii Constitutional lawyer had earlier addressed Corporate Counsel of the City and County of Honolulu at a September 01, 2010 public infrastructure hearing recorded by Olelo Community Media. His presentation as city legal consultant is on the city’s website [click: View Meetings and Agenda]. He warned the city of the rights of the public for free speech use on the sidewalk.

All sidewalks are protected by First Amendment rights of free speech which allows artists and public voices to exhibit, rally and fundraise on the sidewalk. In an email to a resident, Van Dyke responded to this question:
When the city installs its new sidewalk planter boxes, grass-covered berms and tiles, what happens to the private property line if part or all of the public sidewalk disappears?

The public aspect of the sidewalk was altered by streetscape designs on the makai (beach) side of Kalakaua Avenue. This runs the entire length of Royal Hawaiian Shopping Center. Note also, that Beachwalk (Lewers Street), Luxury Row by Tiffany’s and the old King Kalakaua Plaza (old NikeTown) sidewalk district have had a privatized makeover. And, of further intrigue in Waikiki, is the stretch of Kalakaua Avenue sidewalk adjoining Kuhio Beach from the HPD Substation to Kapahulu Street. It was a non-parks sidewalk long ago - built by public funds.

Repeatedly in the federal U.S. Ninth Circuit Court the public has had their rights reaffirmed. Public sector and nonpublic-sector unions, ACLU and individuals have all the while reaffirmed their right to free speech without discrimination on the entire sidewalk; from the roadway curb to the private property line (the building line, and NOT the unmarked easement line somewhere in the middle). This includes all sidewalk ‘easement’ strips along side private property or building lines which private security guards try to use to discriminate against certain street users. Note that pedestrians have access to these easements. Because it is illegal to discriminate against users of the sidewalk under equal application of the law, the easement is open to free speech use. If one person can use any part of the sidewalk then all persons can use that same part of the sidewalk.
Free speech on the sidewalk is a fundamental right and an essential means of community interchange in the very way as the pavement is used to get from a to b.

The state, HPD, private business, private security or any entity cannot deny one or any user of First Amendment rights on the sidewalk.

In his email and deliberation to the city, and in his capacity as a paid legal consultant, Van Dyke said that unions, churches and the public will maintain First Amendment rights of free speech on the sidewalk and cited the federal ruling handed down in the Venetian Casino Resort case (Las Vegas, 2001). Here, the luxury hotel took away the public sidewalk designing the appearance of private ownership. Judge Hug ordered Venetian Casino to replace the sidewalk saying the sidewalk affected had been connected to the city sidewalks and was Public Forum protected by the U.S. Constitution.

In Waikiki you can see an example of this on the Ala Moana Boulevard and Kalia Road corner where Hilton Hawaiian Village truncated the public sidewalk altogether. They ran a passageway across their property connecting back to the regular city sidewalks. You can see that the passageway has a green line on the inner side of the passageway which demarks the right of public use. It’s open for pedestrians, union protesters, artists, newspaper stands and other Public Forum activities. This is called sidewalk “replacement”.
Now, as the area of Kalakaua Avenue sidewalk affected by the streetscape is to be diminished then sidewalk replacement has to be made such as at Venetian Casino and Hilton Hawaiian Village. In the case of Venetian it was ordered after the fact, but since that case and because of it, in the case of Hilton the designers planned and constructed the replacement without a court battle and with minimal disruption.

BUT replacement has not been planned in the current joint city/developer plan on Kalakaua Avenue. In this high density area where multi-story buildings butt the sidewalk on one side and the roadway on the other, it is a monumental, probably unrealistic, challenge to keep the new project and accommodate the U.S. Constitution at the same time. The Public Forum must either extend into retail and building space or onto the street. OR the new planter boxes going in must be ripped up!! No court can rip up the Constitution but a court can order the planter boxes be removed.
Under federal law people can put their tables, chairs and shading up, distribute flyers, chant and praise their deity, rally and protest, ask for donations and do all that’s been established as free speech. It appears you can name prices for products, entertainment and services based on anti-discrimination principles. The Star Advertiser for instance openly advertises price and sells newspapers for profit using the public sidewalk under the Public Forum.

Refer to “Jingles” case No.96-55545 -Ninth Circuit:
NMI PERRY v. LOS ANGELES POLICE DEPARTMENT.


City and state government and property owners have convinced many, including our agencies such as HPD, that the rules governing the sidewalk are locally Hawaiian ones, or change from suburb to suburb, or from one side of the street to the other or from one property to the next, or even from entity to entity and person to person. Worse, the local “rules” are more often than not just hearsay. This accounts for the obscene number of sidewalk arrests that go to state court with no conviction resulting. Things are applied with discrimination picking on venerable, poor and less assertive people.

LOCAL AUTHORITIES, PROPERTY OWNERS AND SECURITY PERSONEL ARE FABRICATING SIDEWALK LINES AND RULES RESULTING IN HARRASMENT AND SUPPRESSION OF INDIVIDUALITY AND FREE SPEECH!
WHERE STATE RULINGS AND LOCAL HEARSAY CONFLICT WITH THE RIGHTS OF FREE SPEECH AND WHICH THE U.S. SUPREME COURT UPHOLDS THEN THE STATE RULINGS ARE OVERRIDDEN.
THE SIDEWALKS MUST BE PROTECTED FOR FREE SPEECH BY AND FOR THE PEOPLE! NOTHING CAN BE MORE OBVIOUS IN THE WAKE OF THE EGYPTIAN REVOLUTION WHICH IS A SUCCESSFUL USE OF PUBLIC SPACES AGAINST THAT GOVERNMENT DICTATORSHIP. THE PROTESTS IN PUBLIC SPACES AGAINST UNION BUSTING IN WISCONSIN IS ALSO OF NOTE!
PRIVATE CORPORATES IN WAIKIKI ARE CURRENTLY STEALING THE PEOPLE’S PHYSICAL AND INTELLECTUAL PROPERTY -
AND AT TAX PAYER EXPENSE!

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Defeated-Mayor Peter CarlisleSAME NUMBER
SAME HAND
DIFFERENT PUPPETMayor Kirk Cardwell-Honolulu

808-768 4385